Under 16
If you are under 16, no-one is allowed to have sex with you.
Even if you agree to have sex with someone, it is still against the law for that person to have sex with you. They can be charged with a criminal offence.
A person may be able to defend themselves against such a charge where:
Ø you agreed to have sex with them; AND
Ø you were 10 years or older at the time of having sex; AND
Ø they were not more than 2 years older than you
A person may be able to defend themselves against such a charge where:
Ø they “believed on reasonable grounds” that you were 16 or older; OR
Ø they were married to you.
For someone to believe “on reasonable grounds” that you were 16 or over means more than not asking how old you are.
16 and above
Once you are 16, you can legally have sex with any other person who is 16 or over as long as you both agree to it.
If you are 16 or 17 and have sex with someone who has a relationship of "care, supervision or authority" over you (e.g. they are a teacher, step-parent, guardian, foster parent, sports coach, doctor etc), they can be charged with a criminal offence.
A person may be able to defend themselves against such a charge where you agreed to have sex with them; AND
Ø they “believed on reasonable grounds” that you were 18 or older; OR
Ø they are legally married to you.
For someone to believe “on reasonable grounds” that you were 18 or over means more than not asking how old you are.
Under Malaysian law, a man who is said to commit:
1) rape shall be punished for a term which may extend to 20 years, and shall also be liable to whipping, if he has sexual intercourse with a woman under any of the following circumstances:
(a) against her will;
(b) without her consent;
© with her consent when that consent has been obtained by putting her in fear of death or hurt to herself or any other person or obtained under a misconception of fact and the man knows or has reason to believe that the consent was given in consequence of such misconception;
(d) with her consent when the man knows that he is not her husband, and her consent is given because she believes that he is another man to whom she is, or believes herself to be, lawfully married or to whom she would give consent;
(e) with her consent when, at the time of giving such consent, she is unable to understand the nature and consequences of that to which she gives consent;
(f) with her consent, when that consent is obtained by using his position of authority over her or because of a professional relationship or other relationship of trust in relation to her;
(g) with or without her consent, when she is under 16 years of age.
Exception: Sexual intercourse by a man with his own wife in a marriage which is valid is not considered rape.
(References: Sections 375 and 376 of the Penal Code)
2) aggravated rape* is punishable by imprisonment for a term of not less than 5 years and not more than 30 years, and the assailant is also liable to whipping if he commits rape on a woman under any of the following circumstances:
(a) at the time of, or immediately before or after he commits rape, causes hurt to her or to any other person;
(b) at the time of, or immediately before or after he commits rape, puts her in fear of death or hurt to herself or any other person;
© he commits rape in the company of, or in the presence of, any other person;
(d) without her consent, when she is under 16 years of age;
(e) with or without her consent, when she is under 12 years of age;
(f) with her consent, when that consent is obtained by using his position of authority over her or because of a professional relationship or other relationship of trust in relation to her;
(g) at the time of the offence the woman was pregnant.
(Reference: Section 376 of the Penal Code)
3) incestuous rape* shall be punished with imprisonment for a term of not less than 8 years and not more than 30 years, and shall also be punished with whipping of not less than 10 strokes. This is a situation where a man commits rape on a woman whose relationship to him is such that he is not permitted under the law, religion, custom or usage, to marry her.
(Reference: Section 376 of the Penal Code)
4) causing death whilst committing or attempting to commit rape shall be punished with death or imprisonment for a term of not less than 15 years and not more than 30 years, and shall also be punished with whipping of not less than 10 strokes.
(Reference: Section 376 of the Penal Code)
• Note that the terms “aggravated rape” and “incestuous rape” are not expressly used in the Penal Code. They are used here for easy reference.
Additionally,
5) Any husband, who during the subsistence of a valid marriage, causes hurt or fear of death or hurt to his wife or any other person in order to have sexual intercourse with his wife shall be punished with imprisonment for a term which may extend to 5 years.
(Reference: Section 375A of the Penal Code)
6) Any person who has sexual connection with another person by the introduction of any object into the vagina or anus of the other person without the other person’s consent shall be punished with imprisonment up to a maximum of 20 years and shall also be liable to whipping.
Exception: This does not apply where the introduction of any object into the vagina or anus of any other person is carried out for medical or law enforcement purposes.
(Reference: Section 377CA of the Penal Code)
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